Ontario was importantly the first jurisdiction in Canada to recognise that it is possible for a child to have more than two legal parents, albeit through judicial rather than legislative means. The Ontario Children Law Reform Act (CLRA) 1990 determines the legal parenthood of children. The primary purpose of this statute was to remove any difference in the legal treatment of children born within and outside wedlock. Therefore, it was not specifically designed with assisted reproduction or same-sex parenting in mind. The same was true of Ontario’s system of birth registration established by the Vital Statistics Act 1990 (VSA). Until 2007, it was only possible under that statute to register one man as a child’s father and one woman as a child’s mother. This was challenged in Rutherford v
Ontario (Deputy Registrar General), where the Ontario Court of Appeal declared
the VSA’s birth registration scheme to be unconstitutionally discriminatory against same-sex parents.321 As a result of this Ontario’s legislature amended the VSA to allow two women to be registered as a child’s parents but only if the father is unknown and conception occurred through assisted reproduction.
Registration under the VSA as the parents of a child is presumptive but not conclusive proof of legal parenthood. It is, consequently, possible to seek a declaration of parentage under the CLRA, which is conclusive proof of legal
123 parentage. As the applicants in Rutherford, a married lesbian couple whose children were conceived using anonymous donor sperm, were unable to register as the parents of the child under the VSA, they sought a declaration under the CLRA. The Court of Appeal held that, while the Act did not specifically allow for this, they were able to use their inherent jurisdiction to grant such a declaration.
A single gay man had also previously successfully obtained a declaration that he was the sole parent of a child born through surrogacy, with the surrogate’s consent.322 In that case, D (KG) v P (CA), the court held that Ontario’s VSA’s birth registration scheme was inadequate because it required the applicant to go to court to be registered as a legal parent of the child. The same was true for the
Rutherford applicants who were required to go to court to obtain a declaration of
parentage rather than being able to automatically register as the child’s parents. This has been remedied to an extent in Ontario by the 2007 legislative amendments outlined above. However, as Radford notes, ‘[t]he violation of equality rights of lesbian families continues for those who use known donor sperm, and for families involving two biological mothers’.323
These judicial and legislative developments in Ontario reveal important distinctions in the treatment of male-led and women-led families when it comes to family recognition. The argument that was made in Rutherford and subsequently, at least partially, accepted by the legislature was that it is discriminatory to require female partners to go to court to register, as the parents of their child when different-sex couples are not required to do this. The legislature only provided a partial remedy to this by allowing the automatic registration on the birth certificate of two female parents provided the sperm
322 D (KG) v P (CA) 2004 CarswellOnt 8819 (SCJ).
124 donor was unknown. This echoes the way in which the AHRA focuses on anonymous sperm donation leaving the situation of known sperm donors unregulated. As this section will go on to discuss, other provinces that have systematically legislated in relation to assisted reproduction have not made this distinction. For example, in Quebec, BC and Alberta, as in England and Wales, it is possible for two female partners to register as the legal parents of a child regardless of whether the sperm donor is known or unknown.
However, with the exception of BC, none of these jurisdictions have extended the possibility of allowing automatic registration on the birth certificate to male couples. The UK HFEA provides a mechanism whereby a male couple can apply to the court following birth to obtain a birth certificate listing them as the legal parents, as discussed above.324 However, in D (KG) v P (CA), the Ontario Superior Court questioned whether it was ‘fair and just that the applicant, and all those who may follow him, be subjected to a payment of considerable legal costs in order to secure and finalize the very important right of birth registration’.325 The question was posed in the context of an application for the costs of a single man having to go to court to obtain a birth certificate recognising him as the sole legal parent, with the consent of the birth mother.
In awarding the applicant his costs, the Ontario court seem to have reached a more equitable position than the HFEA 2008 does in the UK. Naturally, the Ontario court did not have the power to amend the legislation to allow future parents in the applicant’s position to register as parents automatically. However, by awarding the applicant’s costs, the court signalled that men in the applicant’s position should not have to bear the burden of going to court in order to obtain a
324 Human Fertilisation and Embryology Act 2008 s 54. 325 D (KG) v P (CA) (n 316) [19].
125 birth certificate for their child. Not only did the UK legislature affirm the opposite position, that a court order is required to become a legal parent in a surrogacy situation, it also foreclosed that option to single men by requiring that two applicants ‘in an enduring relationship’ apply. This contrasts yet again with the position in BC, where the legislature has explicitly provided a mechanism for the intended parents to obtain a birth certificate following birth in the context of a surrogacy arrangement without having to go to court.326
The legal recognition of male-led families will be revisited in more detail in Chapter Seven.327 For the moment, it is simply worth noting the differing approaches to both women-led and male-led families in the different Canadian jurisdictions and how this contrasts with the position in England and Wales. These differences are understandable because there are different interests at stake in relation to known donor arrangements as compared to situations involving surrogacy. Although Ontario has not adopted a comprehensive legislative position in relation to same-sex families formed through assisted reproduction, there has been judicial consideration of a wide range of families, including not only women-led and male-led families, as discussed above, but also multiple- parent families.
The case of A (A) v B (B)328 provides some insight into how the Ontario Court of Appeal has addressed the issue of recognising multiple parents. As discussed above, there is no legal framework specifically concerning assisted reproduction in Ontario. The legal parenthood of a child is determined by the Children’s Law Reform Act (CLRA) 1990. Section 1 of the CLRA provides that ‘…for all purposes
326 See page 133. 327 See page 337.
126 of the law of Ontario a person is the child of his or her natural parents…’329 In addition to this, section 4 provides that ‘[a]ny person having an interest may apply to the court for a declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child’. In Rutherford v
Ontario (Deputy Registrar General)330 the Ontario Superior Court of Justice held that such a declaration could be made in favour of same-sex parents and that they should be allowed to be registered as the parents of the child under Ontario’s Vital Statistics Act. However, such a declaration would mean that the biological father was not recognised as a legal parent.
In A (A) v B (B), A and C, female partners in a stable, long-term relationship, asked their male friend B to help them start a family by biologically fathering a child with them. The arrangement was for A and C to be the child’s primary caregivers. However, they felt that it would be in the child’s best interests if B remained involved in the child’s life. C gave birth to D in 2001, whereupon C and B were D’s legal parents under the CLRA. All three adults wished A to have equal recognition as a parent alongside B and C. Consequently, A and C did not wish to adopt D because that would mean extinguishing B’s parental connection with D. Therefore, A sought a declaration under the CLRA that, like B and C, she was also one of D’s legal parents. The judge at first instance would have made such a declaration but he did not consider he had the power to do so either under the CLRA or using the court’s inherent parens patriae jurisdiction.
Although the Ontario Court of Appeal confirmed the trial judge’s finding that the court has no power under the CLRA to declare a child to have more than two parents, the court held that a legislative gap existed and the court was, therefore,
329 Children’s Law Reform Act 1990 c. 12. 330 Rutherford v Ontario (n 315).
127 empowered to use their parens patriae jurisdiction to fill that gap. The Court of Appeal found that the original legislation was designed to remove any legal effects of illegitimacy and did not seek to address parentage following assisted conception. The Court held, therefore, that rather than being deliberate the legislative gap was a ‘product of the social conditions and medical knowledge at the time’.331 In light of this and the Court’s finding that ‘It is contrary to D’s best interests that he is deprived of the legal recognition of the parentage of his mothers’,332 the court made a declaration that A was one of D’s legal parents alongside B and C.
This finding is particularly significant because of the central importance the court places on the concept of legal parenthood in recognising same-sex parenting. Lowe contends that the family unit should enjoy ‘adequate and equal legal recognition’ whatever form it takes.333 In the context of gay/lesbian co-parenting projects, ‘adequate and equal legal recognition and protection’ means granting full parental status to those who all parties intend to be social parents to the child. The reason for this is that being considered a parent is an important part of being considered a member of the family.334 The court in A (A) v B (B) acknowledged this by implying that being considered a parent is not only important in terms of
331 [38].
332 [37].
333 Nigel Lowe. 'A study into the rights and legal status of children being brought up in various forms of marital or non-marital partnerships and cohabitation: A Report for the attention of the Committee of Experts on Family Law of the Council of Europe ' (2009)
<http://www.coe.int/t/DGHL/STANDARDSETTING/FAMILY/CJ-
FA%20_2008_%205%20E%2025%2009%2009.pdf> accessed 16 August 2015.
334 Caroline Jones, ‘Parents in Law: Subjective Impacts and Status Implications around the Use of Licensed Donor Insemination’ in Alison Diduck and Katherine O’Donovan (eds), Feminist
128 its legal effects (e.g. the right to inherit) but also its extra-legal effects such as a feeling of connection between the social parent and child.335
A (A) v B (B) can be seen as an affirmation that legal parenthood is considered
as being that which ‘makes the child a member of a family, generating for that child a legal relationship with wider kin going well beyond the parental relationship’.336 Therefore, the way in which the law confers legal parenthood is significant because this determines whether children and potential parents are considered as part of a family unit. As Professor Lowe highlights, ‘children do not live in a vacuum, but within a family and an important part of their protection is that the family unit, no matter what form it takes, enjoys adequate and equal legal recognition and protection. In other words, it is as discriminating to the child to limit legal parenthood or to deny significant carers legal right and responsibilities as to accord the child a different status and legal rights according to the circumstance of their birth or upbringing’.337 This goes to the very heart of family law and engages tensions within the European Convention on Human Rights, which guarantees the right to marry and found a family338 and a right to private and family life339 as well as the Canadian Charter of Rights and Fundamental Freedoms. Therefore, the status of legal parenthood is not simply about
335 AA v BB (n 322) [35].
336 Andrew Bainham, 'Parentage, Parenthood and Parental Responsibility: Subtle, Elusive Yet Important Distinctions' in Andrew Bainham, Shelley Day Sclater and Martin Richards (eds),
What is a parent? : a socio-legal analysis (Hart Pub., Oxford 1999) 33.
337 Lowe, ‘A study into the rights and legal status of children being brought up in various forms of marital or non-marital partnerships and cohabitation: A Report for the attention of the Committee of Experts on Family Law of the Council of Europe ’ (n 327).
338 European Convention on Human Rights art 12.
129 protecting the interests of adults. It extends beyond this and impacts on the rights of children, which there is a clear international political mandate to protect.340 Given the importance of legal parenthood, however, reliance on a court’s inherent jurisdiction to recognise the legal parenthood of children is not entirely satisfactory. One reason for this is that it is highly discretionary and dependent on the factual circumstances of the case. Therefore, this does not provide any sense of security for those embarking on creating these types of family that their family will be legally recognised. Radford argues that, ‘[a]nother constitutional case…is needed to recognize and affirm the realities of all families, rather than enforce traditional family forms as privileged’.341 At the very least courts require statutory powers to recognise multiple parents, similar to the power the courts in England and Wales have to recognise two parents of a child born through surrogacy. However, it may be desirable to go even further as BC has done to allow multiple parents to be registered on the birth certificate without having to go to court.